Online Solicitation: When Does the State of Florida do What's Right Under the Law?

March 31, 2008 by David S. Seltzer

The law is in place to protect all of us, including police, so what makes them feel that they can (a) toe the line, or (b) break the law? First, before I continue on this topic, let me stress that the case I am referring to is not being prosecuted in South Florida, but it is being prosecuted in the State somewhere.

I was recently retained to work on a matter pertaining to cyber crime. Upon my review of the facts, I was shocked and appalled that the prosecuting agency was acting in this manner - not willing to discuss the case or the lack of the case they have. Instead, what it appears as though they are willing to do is create law, which as the current state of the case law stands would be great for the defense bar!

I am referring to an online solicitation case with chat logs, not closely, but CLEARLY entrap the defendant. The undercover is the aggressor in each chat, brings up all the sexual conversations, even after the defendant continually says he is not interested in that, and even goes so far on one occasion as to initiate the chat session. Do you want more? The undercover, after she continually invited the defendant to come and visit, asked him of course to bring protection, to which the defendant again said, do not want to have any sexual contact/relations. Undercover, then offered to book a hotel room for them! It went on...

Now if this case ever came across my desk when I was a prosecutor, I would have slapped the detective upside the head and then explained to them why I was not filing the case.

If that isn't enough, there are other issues. Did I mention to you that they are missing NUMEROUS portions of the chat logs as they had computer issues and could not save them. What they do have are excerpts that were cut-and-pasted from the chats, but they are INCOMPLETE. Oh, and they only chose to use the logging feature provided to law enforcement at certain times to record the chats, when it suited them. And of course, there is no mention in the chat logs by the undercover of her age, being a minor, there are references but no direct mention. Also, they said it was common practice for their department to wipe the undercover computer's hard drive, thus making it impossible for any recovery by the defense. This case is a mess for the State, yet there is no telling them that.

On the issue of the chat logs, there is a case on point that addresses this situation. In United States v. Jackson, 488 F.Supp.2d 866 (8th Cir.(Neb.) May 08, 2007), the Court held that cut and paste chat logs failed to meet the foundational requirements of authentication, and thus not admissible at trial. The Court stated that the State has the burden of proof to show that the transcripts are authentic and trustworthy. Id., at 871; see also United States v. Black, 767 F.2d 1334, 1342 (9th Cir.1985); Fed.R.Evid. 901(a); United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000); United States v. Webster, 84 F.3d 1056, 1064 (8th Cir.1996).

In Jackson, the State sought to introduce “editorialized” transcripts, as portions of the conversations were not available as they were omitted in the copy and paste process, not saved, or destroyed. Jackson, at 870. When the time came to use the actual chats, the computer had been wiped, there was no logging feature used, and the editorialized versions were all that was available. Id. “The cut-and-paste document offered by the State is not an accurate original or duplicate, because it does not accurately reflect the entire conversations between the defendant and [undercover]. Id. At 872.

A computer forensic expert testified that there were numerous alternatives to the cut-and-paste method that would have been far more accurate, and would not have allowed data to be lost. Furthermore, that had the computer not been erased, the chat logs may have been recoverable. The Court went on to state that the missing data “creates doubt as to the trustworthiness of the document…[as] deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.” Id. It is clear that the proposed document does not accurately reflect the contents of the original. Id. At 872.

Two additional cases that also address the admissibility of chat logs and transcripts are United States v. Tank, 200 F.3d 627 (9th Cir.2000) and United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir.1998). However, these cases are distinguishable as the actual computer files were offered as evidence, not cut-and-paste versions.

The Court in Jackson, went on to exclude the chat logs in lieu of allowing the officer to refresh his recollection as to the missing portions, as doing so would have allowed the government to indirectly present the chat logs to the jury, and create an unfair situation for the defendant. Jackson, at 872; see also Hall v. American Bakeries Co., 873 F.2d 1133, 1136 (8th Cir.1989).

So is it worth it to hold your ground and start creating law that probably won't conform what's right, or should the prosecutor here realized that you can't win them all?